McMillen v Brambles Security Services Limited
[2001] QSC 271
•8 June 2001 (Reasons and proposed orders). Final order made 31 July 2001
SUPREME COURT OF QUEENSLAND
CITATION: McMillen v Brambles Security Services Limited [2001] QSC 271 PARTIES: CHRISTOPHER ALBERT MCMILLEN
(plaintiff)
v
BRAMBLES SECURITY SERVICES LIMITED
ACN 004 247 358)
(defendant)FILE NO/S: S8693 of 2000 DIVISION: Trial Division PROCEEDING: Civil Trial ORIGINATING COURT: Brisbane DELIVERED ON: 8 June 2001 (Reasons and proposed orders). Final order made 31 July 2001 DELIVERED AT: Brisbane HEARING DATE: 21 May 2001 JUDGE: White J ORDER: 1. Judgment for the plaintiff against the defendant in the sum of $567,174.92.
2. The defendant pay the plaintiff’s costs of and incidental to the action (including reserved costs, if any) to be assessed on the standard basis, such costs to include the costs of Queens Counsel and Junior Counsel.
3. There be no order as to costs with respect to the further submissions on the entitlement of the plaintiff to interest on non-economic loss components.
CATCHWORDS: EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – LIABILITY OF EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW – SAFE SYSTEM OF WORK - GENERALLY - Security guard - whether proper procedures followed
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – REMOTENESS AND CAUSATION – FORESEEABILITY OF DAMAGE – PERSONAL INJURIES – whether negligence causative of loss - psychiatric illness - future employability.
EVIDENCE – ADMISSIBILITY AND RELEVANCY – OPINION EVIDENCE – EXPERT OPINION – whether a relevant area of expertise existed – whether field of study assisted the court in making its decision
Workplace Health and Safety Act 1995 (Qld)
Nelson v John Lysaght (Australia) Limited (1974-75) 132 CLR 201.
Keeys v State of Queensland [1998] 2 Qd R 36.
Astley v Austrust Ltd (1999) 73 ALJR 403
Clark v Ryan (1960) 103 CLR 486
R v Bonython (1984) 38 SASR 45
Daubert v Merrell Dow Pharmaceuticals, Inc (1993) 509 US 579
R v C (1993) 60 SASR 467COUNSEL: J. Griffin QC and
R. Clutterbuck for the plaintiff
J. Douglas QC and
J. McDougall for the defendantSOLICITORS: McDonald Balanda & Chesters for the plaintiff
Deacons for the defendant
The plaintiff was employed as a permanent casual security officer by the defendant operating out of its Nerang branch office. At about 12.30 p.m. on Tuesday, 7 November 1995 whilst carrying out his duties as escort in relation to a consignment of money at the Commonwealth Bank in Bay Street, Tweed Heads he was taken hostage by two armed men and used by them in carrying out a robbery at the bank.
As a consequence, the plaintiff experienced and continues to experience a chronic post traumatic stress disorder and chronic major depression which is likely to continue, despite ongoing treatment, indefinitely.
Although both liability and quantum are in issue there was substantial agreement about the nature and effect of the plaintiff’s injuries. Liability is, however, very much disputed. The plaintiff has sued in contract and tort and has alleged breach of the Workplace Health and Safety Act 1995 (Qld). The incident occurred in NSW and the plaintiff abandoned the statutory duty claim at the commencement of the trial. The defendant contends that it took all proper care for the plaintiff’s well-being and alleges that the plaintiff was the sole cause of his own injuries by his failure to follow procedures established by the defendant to avoid the very situation which occurred. Alternatively the defendant alleges substantial contributory negligence by the plaintiff although in the light of Astley v Austrust Ltd (1999) 73 ALJR 403 this is rather academic.
There are some factual issues to resolve as to what occurred immediately prior to the plaintiff being taken hostage. Even if those issues are resolved in favour of the plaintiff the further question arises as to whether any breach of the duty of care which the defendant owed to him was causative of the plaintiff’s damage.
On the question of liability the plaintiff sought to adduce evidence from an expert, Mr Ken King who is a psychologist and a mechanical engineer, about risk management in the field of occupational health and safety as it applies to the work of crews of armoured cars. The defendant objected on two bases to the reception of this evidence, namely, that this was not part of a body of knowledge such as to permit a person to give opinion evidence about it and further, even if it were, Mr King was not qualified to do so. I ruled against the admissibility of this evidence for reasons which will be set out below.
The defendant (now owned by Chubb Security Services ) carried out armoured car escort work in Queensland. It had a branch at Nerang which served the Gold Coast and northern New South Wales areas down to Kingscliff. It was contracted to collect cash from the Reserve Bank of Australia and to deliver and collect cash from banks in its area.
Each armoured car carried a team of three personnel. The rear guard travelled in an enclosed rear compartment of the armoured car separated from the driver and escort by heavy plate glass. He did not usually leave the vehicle during consignment duties. The rearguard was responsible for receiving and giving out the cash and did the associated paperwork. He had lookout duties as well, particularly whilst the other crewmen were operating outside the armoured car. The rear guard was also responsible for maintaining radio communication with base and the crew members outside the vehicle. A radio was located within the compartment. There was an intercom system between the rear and front compartments.
The driver of the armoured car, in addition to driving and parking the vehicle, acted as guard to the escort who, in the practice then operating in Queensland by the defendant, carried the cash. After the vehicle was parked and all the crew had surveyed the area the driver would, for example, check the area outside and inside the bank before the escort was given cash from the armoured car by the rear guard to take into the bank and/or went into the bank to collect cash. The escort would return with it to the rear of the armoured car where it would be received by the rear guard. The driver protected the consignment during these transactions. The driver but not the escort was issued with a hand held radio tuned to the radio in the car. All crew were expected to maintain surveillance at all times.
The defendant used a vehicle known as a chase car whose driver’s purpose was to check the area where an armoured car was about to make a delivery or collection for criminal activity and also to oversee procedures on the road and in the street by the armoured car crew. These cars were easily identified as owned by the defendant because its name was displayed prominently. The purpose of the chase car was one of deterrence as well as detection since its use was random and it was thus thought that its arrival at a targeted bank would disconcert criminals who would have anticipated that they only needed to confront the crew of the armoured car. Sometimes a second car belonging to the Nerang branch manager would be available as a chase car. There was only one other chase car available which operated out of the Brisbane office.
There are differences between the plaintiff’s account of what occurred leading up to him being taken hostage and that of the driver, Trevor Spriggs. Mr Spriggs said that as crew leader he told the plaintiff to get back into the vehicle because there was a threat situation, but that the plaintiff ignored him and went to investigate and exposed himself to injury. The plaintiff denies that Mr Spriggs said anything to him. The third crewman, Stephen Hull, tended, overall, to support the plaintiff’s account. All three men were experienced security guards although, as I understood the evidence, none, or at least the plaintiff and Mr Spriggs, had previously been exposed to an attempted or effected armed robbery in the course of his employment.
The defendant contended that the plaintiff’s evidence, where it differed from that of Mr Spriggs, ought to be rejected because different accounts of what had occurred are pleaded in the various forms of the statement of claim which has been twice amended. I do not set great store on those differences in this case. The statement given to the police by the plaintiff on the day of the robbery and the most recently amended statement of claim are substantially the same. The plaintiff, himself, was puzzled about how the version of the facts in the earlier versions of the statement of claim came to be pleaded. In some cases this can be evidence of a change in a plaintiff’s account of events when weakness in a case has been identified prior to trial. I do not think that is so here. I find no reason not to accept the plaintiff’s account which is, to some extent, supported by the evidence of the rearguard, Stephen Hull.
There may also have been something in Mr Griffin’s question to Mr Spriggs that he had persuaded himself, albeit honestly, in the years following the incident in which he, too, suffered significant long term distress, that he had told the plaintiff to get back into the armoured car rather than investigate further, because of feelings of guilt and/or blame. Mr Spriggs had made no mention of telling the plaintiff to get back into the armoured car prior to the plaintiff being taken hostage when he gave a statement to police on the day of the incident.
On the morning of 7 November 1995, which was noted at trial as being Melbourne Cup Day, the chase car supervisor, Graham Hassan, and another supervisor were required to perform rear guard duties on other bank runs by other armoured cars because crewmen failed to report for duty - one the evening before and the other that morning. The southern run which involved the armoured car travelling down to Kingscliff servicing the banks on the left side of the road and returning to Nerang servicing the other side was regarded by the defendant and its security staff as having points of particular concern for security. Bay Street, Tweed Heads itself had a concentration of four banks. About two weeks prior to the armed robbery a memo was posted on the defendant’s staff bulletin board from the State security manager alerting road crew that one S. Tange had been sighted in the Gold Coast area. He was a reputed criminal wanted for questioning about a number of recent hold ups at the coast. Any sightings of him at or near transaction points were to be reported promptly and transactions were to be delayed until otherwise advised. His photograph showed him to be a large, bulky man.
Mr Hassan said that he would attend the Bay Street area at least twice a week and would usually park outside telephone boxes just down from the ANZ and Commonwealth bank buildings. The runs from the Reserve Bank were Tuesdays and Thursdays when there were large consignments of cash, for example, on pension day, but there were armoured car runs every day to the area.
The timetables for the runs were organised monthly by the Reserve Bank. To a large extent they were driven by each bank or institution not wishing to have large amounts of cash lying around waiting for pick up. Accordingly most banks would put the cash into time locked containers calculated to unlock just prior to the scheduled arrival of the defendant’s armoured car. There was flexibility of no more than half an hour each side of the scheduled time. If the arrival were likely to be outside this time frame the bank would need to be advised by telephone. Although it was recognised that random routes and arrival times would inhibit criminal activity nonetheless the administrative chaos to the banks and their commercial customers in so doing made changes to routine other than monthly unworkable.
A crew leader was appointed for each armoured car run and this was notified at the start of a shift by a roster at the branch. The leader could occupy any one of the three positions in the armoured car and these rotated between the crew provided he had twelve months’ experience. The scope of the role of leader did not appear great since each crewman was responsible for the safety of the consignment. Mr Spriggs was the nominated leader for this day. On his account the crew leader was responsible for quite minor decisions such as having “the final say of where they were going to have smoko or stuff like that” t/s 171. Any more major decisions, Mr Spriggs said, would be taken by base.
The plaintiff had extensive experience in security work prior to commencing work with the defendant in about 1994. He was well regarded by his employer and in March 1995 he had received a letter congratulating him on achieving one year’s service with Brambles Armoured. The letter concluded
“Thank you for the dedication and support over the last 12 months and I look forward to the years to come with equal enthusiasm.” (exhibit 13)
The plaintiff held all the necessary firearm and security licences. His employment on armoured cars with the defendant was his first experience of road crew work. He was given two days training on 3 and 4 March 1994 in Brisbane dealing with, for example, cash collection procedures and sitting for written tests. Although the plaintiff could not recall seeing a training video in which an armoured car crew were attacked by actors posing as robbers he may have done so and whether he did or not has no bearing on the outcome of the trial. He then went to Nerang where the “buddy” system of training on the job was used for one or two runs. It was then that he learnt the departure from the proper procedure when servicing between the ANZ and Commonwealth Banks in Bay Street.
There was a question as to whether the plaintiff had been issued with a “Security Service Employees Handbook” at the time he underwent his initial training in Brisbane. The plaintiff appears to have signed a document produced by the defendant acknowledging receipt of the handbook along with items of uniform and other kit on 15 March 1994. He maintained that he did not receive it until after many requests about a year later. A notation dated 9 March 1995 on exhibit 26, the document which he had signed for his kit, could well support the plaintiff’s evidence. In any event, the plaintiff had his own copy of the handbook and had had it for some eight months prior to the robbery (exhibit 14) and was familiar with its contents.
The purpose of the handbook was
“… to present in an easily read form, the basic tactical and technical information needed by staff, operators engaged in cash in transit operations and all other Company activities across Australia…”
Chapter 8 concerned armoured car crew duties. The responsibilities of the crew leader suggested that he was first amongst equals
“Where a Crew Leader is appointed he shall be in control of the Armoured Car and be responsible and accountable for the conduct and performance of the vehicle and crew irrespective of which duty within the Armoured Car he is performing. This does not abrogate each individual crewman to perform the duties of his rostered position as described.”
The handbook was provided to Brambles staff throughout Australia. In Queensland it had become the practise to reverse the roles of driver and escort from their description in the handbook. Mr Mercer, State manager for security could offer no explanation for this departure but, accepting the role change, the instruction was the same as in the handbook. The driver was required to park as close as possible to the client’s premises. All crew were responsible for surveillance of the area when the armoured car arrived at its destination. After parking, the driver and escort were to exit the vehicle which was then locked. The key was carried by the escort but re-entry to the vehicle could only be obtained by the key and electronic operation from within the vehicle. The driver would “clear” the premises to be visited and the area before the escort would receive any shipment from the rear guard (if there was to be a delivery as opposed to a collection only) and then be escorted into the premises by the driver.
The escort was required to keep one hand free to access his weapon whilst engaged in transit duties. Depending on the nature of the premises the driver would either accompany the escort inside or wait guarding outside.
Whilst other crewmen were operating outside the armoured car
“… it is the requirement of the Rear Guard to maintain vigilance around the vehicle. Any possible danger observed on the streets will immediately be communicated to the operating crew.” Clause 8.3.2(b)
The armoured car was fitted with a radio and contact with base was expected to be maintained at regular intervals. The crew were issued with one hand held radio which was always retained by the driver. Clause 8.3.2(c) emphasised that
“It is a requirement to maintain radio communication with both the base station and the crew operators on the street…”
It is a particular of negligence alleged against the defendant that it failed to provide the plaintiff with a hand held radio whilst he was alone outside the armoured car on the street so that there could be communication to him by the crew in the vehicle.
Chapter 10 of the handbook dealt with emergencies. The crew were advised to be alert for the unexpected although certain dangerous spots were particularly identified. Clause 10.3 referred to hostages
“The taking of a crew member as a hostage is, in these days, quite possible. Where a hostage situation arises, the following procedures are recommended for the safety of personnel. Each incident will have to be assessed on prevailing circumstances.
(a)The Rear Guard will take over the driving role and will immediately leave the scene, driving to a place of safety, eg. nearest police station where the alarm shall be raised …”
This directive clearly assumed that the driver and escort would, consistent with the earlier directives, either be both in or both out of the armoured vehicle.
The crew were directed as how best to deal with “suspicious persons” in Clause 10.4
“When suspicious persons or vehicles are seen in the vicinity, the office should be notified by radio or telephone immediately. Do not attempt to stop or question them. If the crew are inside the location, sound the siren or horn to attract their attention, or communicate by hand held radio. …”
The robbery on 7 November 1995 was from the Commonwealth Bank in Bay Street, Tweed Heads. That bank was located in a building next door to one which housed the ANZ Bank, also serviced by the defendant. A practice had grown up in respect of these two banks which departed from what was recognised as the proper procedure which was to service each location separately. Various photographs tendered in the trial showed that the entrance door to the Commonwealth Bank was on the far right of the building when looking at it and on the corner of a minor road or lane. The entrance to the ANZ Bank which was serviced first was similarly located at the far right of its tenancy.
The armoured car was parked outside the ANZ Bank for its service. After completion instead of getting back into the vehicle with the driver whilst he drove the four or five car parking spaces to the entrance to the Commonwealth Bank, it was the practice for the escort to walk along the footpath to the Commonwealth Bank. The armoured car was re-parked to reduce
across-the-footpath exposure when carrying the cash and also to facilitate the carrying of heavy coin from the bank to the car. At this site the escort rather than the driver would clear the bank and check the area and wait for the driver to resume his guarding position after parking the vehicle before the transaction was commenced.
If necessary, the escort would assist the driver to reverse into a parking place. Although the handbook makes reference to this assistance it seems to be predicated on the other crew assisting the driver from inside the armoured car.
A small, open-air bitumen carpark was located across the lane from the Commonwealth Bank on the corner of the lane fronting Bay Street (exhibits 21 and 22). It was described as the Post Office carpark. The Post Office was located next to the carpark fronting on to Bay Street. About half-way along the carpark frontage on Bay Street were located a number of telephone boxes or booths. It is unlikely that the telephone booths depicted in the photographs are the same as those which were there on 7 November 1995 (exhibits 21 and 33). They seem more likely to have been boxes with swing doors.
Bay Street was a divided street with some centre road parking for cars outside the banks and some centre road garden areas opposite the Post Office. On the other side of Bay Street to the banks and approximately opposite the carpark adjacent to the Post Office was a line of shops including a pharmacy, (exhibits 17 and 20).
On 7 November there was to be both a delivery and a collection from the Commonwealth Bank. As the driver, Mr Spriggs, got into the armoured car after the transaction had been completed at the ANZ Bank and moved it to its position outside the Commonwealth Bank the plaintiff began to walk towards the bank. He checked the area and waited on the corner of the lane for the armoured car to be parked outside the Commonwealth Bank door. His attention was drawn to the other side of Bay Street where he saw three or four girls outside the door of the pharmacy on the footpath waving. They were waving with short back and forth motions across their chests pointing across the road and, it seemed to him, grinning. The plaintiff thought the situation unusual but not suspicious and decided to see what was attracting their attention. Initially he thought that whatever “it” was, was at the Post Office or in the carpark next to the Post Office. His view of the more distant part of the carpark was blocked by two high vehicles.
The plaintiff went to the armoured car, opened the door and said to Mr Spriggs that there was something going on “over there” and that he would have a look and “check it out”. He shut the door and started across the lane, walking on the footpath towards the telephone boxes. They were not the focus of his attention, but the girls across the road and beyond the telephone boxes. The plaintiff estimated that he walked about 20 metres still expecting to see something in the carpark on the other side of the high vehicles or at the Post Office because the girls were continuing to gesture in that direction. When he was “a couple of metres” from the telephone boxes he noticed a man facing into the box nearest to the Commonwealth Bank crouching into the corner wearing a surgical glove on his left hand and holding a telephone to his ear. He was wearing something on his head and heavy clothing although it was November.
The plaintiff stepped on to the road and started to draw his gun - a standard issue Smith and Wesson .38 revolver - “hesitatingly” because he was not sure but he had decided “to call” the man out. The plaintiff was dressed in his Brambles uniform as were the other crew members. At that moment another man emerged from the middle telephone box pumping a Maverick pump action shotgun pointed at the plaintiff and told him to put down his weapon.
The first man then turned around and came out of the telephone box armed with a Magnum .357 revolver. The plaintiff put his gun down on the ground slowly and stepped back. One of the men picked it up and screamed at him “to get a bag” and “get him to throw a bag”. This was a reference to a bag of money being thrown from the armoured car. The assailants had pulled down their headgear to cover their faces.
The plaintiff had his hands in the air walking backwards towards the bank and the armoured car. He then turned to face the vehicle and looked up at Mr Spriggs. The assailants and the plaintiff were halted on the footpath by the armoured car and the smaller of the men kept calling out for a money bag. The plaintiff said that he expected a bag or bags to come out from the armoured car because at least one dummy bag was carried. However Mr Spriggs drove the armoured car off down Bay Street and out of sight.
According to the plaintiff the two assailants appeared stunned and then irate. He was hit in the back with the shotgun and forced into the bank which was busy with customers and staff serving them. The men screamed out that they wanted bags and then called for the manager. Throughout the episode in the bank either the shotgun or the revolver or both were pointed at the plaintiff’s head. One of the assailants, no doubt in order to control the people in the bank, said “shoot him” or similar words to the other man who had his gun pointed at the plaintiff’s head referring to the plaintiff, who expected to be killed and who closed his eyes. The man fired a shot into the ceiling instead. The plaintiff was then forced to the floor face down and told to stop looking by the man with the shot gun who “held the gun to his head” and threatened that if the police came he was going to kill the plaintiff. It seems that the manager came out when threats were made to kill the plaintiff if he did not.
The robbers finally jumped over the counter, emptied the drawers of cash and escaped into the street. The plaintiff gave chase and they fired their gun towards him. They had a get-away car at the end of the lane and escaped with over $10,000.
Mr Trevor Spriggs had been employed by the defendant since about 1991 carrying out armoured car crew work. His account of the incident differed in a number of material respects from that of the plaintiff and there were some differences from the account which he had given to police on the day of the incident.
Mr Spriggs as the driver had been issued with a radio at the start of the day. It was the practice that he would keep it with him until his duties were completed. It was not the practice to issue the escort with a radio.
In evidence-in-chief Mr Spriggs said that after the armoured car was stopped outside the Commonwealth Bank the plaintiff went into the bank to see if there were any problems and “when he came out of the bank in [sic] the truck, I noticed two persons in the telephone box” t/s 173. Mr Spriggs said that the end of the telephone box facing him was of glass and he could see through it. He particularly noticed a large man and another man whom he could not see clearly and saw “a hand that had what appeared to have a glove on it and that was the thing that caught my attention” t/s 173. He thought that the large man was wearing a tracksuit top and probably tracksuit pants and appeared to have a beanie on his head. He was able to communicate through to the rear guard and drew Mr Hull’s attention to the man wearing a glove in the telephone box. Mr Spriggs said that Mr Hull looked out of the window and noticed some girls across the street outside a chemist shop waving or gesticulating and he drew Mr Spriggs’ attention to them. The plaintiff was still on the footpath outside the bank when the crew in the armoured car made these observations. It seems likely, however, that it was Mr Hull who drew Mr Spriggs’ attention to the suspicious man in the telephone box.
Since there was no other means of communication, Mr Spriggs said that he waved the plaintiff to the armoured car and the door was opened though whether by the plaintiff and Mr Spriggs or Mr Hull is immaterial.
The plaintiff stood at the opening of the front passenger door furthest from the hinge. There were two single bucket seats in the front compartment. The armoured car was a big vehicle, the engine was running loudly and there was likely to have been background traffic noise. Mr Spriggs lent across from the driver’s seat and, according to his evidence, said to the plaintiff “Chris, get in the truck” t/s 175. He said that he told him to do so because
“… I perceived that there was a probability that someone was going to try and make an attempt to hold us up because of the fact that he was wearing a glove, which was unusual. The guy was in a tracksuit, which was unusual for that time of the year, and the ladies across the road were obviously waving saying - we could assume from that the situation wasn’t normal.” t/s 175
Mr Spriggs said that the plaintiff asked “why?” and he responded “in the telephone box there is two guys, one of them has a glove on. The girls are waving across the street.” t/s 175-6
According to Mr Spriggs the plaintiff then looked towards the telephone box by stepping away from the armoured vehicle, closed the door and walked off. Mr Spriggs said that either he or Mr Hull suggested calling the plaintiff on the radio before they realised that Spriggs had the radio so they were unable to do so and say “come back to the truck.” t/s 176. Mr Spriggs thought of blowing the horn to get the plaintiff’s attention but feared that that might precipitate action from the people in the telephone box and he was unsure what they might do. Mr Spriggs decided to leave the scene when the plaintiff was taken hostage since it was part of his training that such people were only interested in the money and if the money was removed they would probably release the hostage and flee.
Mr Spriggs denied that the plaintiff opened the door of the armoured car and said words to the effect “that there was something going on over there”, being a reference to whatever it was that the girls outside the pharmacy were pointing to, and that he would “just go and check it out” or made any comment before closing the door and walking off.
Mr Spriggs said that it was always a matter of significance to him that the plaintiff had not got back into the armoured car when told to, but his only explanation for not including that he had said this to the plaintiff in his police statement was that he did not think it important for the police to know. It was not a compelling explanation because he had included other detail of that kind. There were other examples of what seemed to be glib explanations for inconsistencies in his evidence at t/s 182 and 183.
In his statement to police Mr Spriggs said that he saw the suspicious man in the telephone booth wearing winter clothing and a clear plastic glove on his left hand and spoke to Mr Hull about it. He told the police that the plaintiff “then knocked on the passenger side of the truck and Chris told me something”. The statements to police by the three crew are appended to exhibit 12. He described that while he was talking to the plaintiff he saw a security officer from Border Security walk into the Commonwealth Bank, he then looked towards the chemist shop and saw three girls standing inside the shop with one waving her arms. When he turned around he saw the plaintiff walking along Bay Street towards the telephone box.
I did not find Mr Spriggs a reliable witness. He may well have said something to the plaintiff when the armoured car door was open as Mr Hull’s evidence suggests, but whatever it was, I find that it was not heard by the plaintiff.
I did find Mr Hull’s evidence of assistance. He had been employed by the defendant as an armoured car crew for approximately six years at the time of the incident. He noted a man whose demeanour and clothing alerted him whilst Mr Spriggs was moving the armoured car between the banks. The man was tall,wearing tracksuit pants, a windcheater and a fawn coloured beanie on his head. He was also wearing sneakers and sun glasses which were only lightly coloured. He noticed that there was possibly something up the front of his windcheater. He commented to Mr Spriggs that he thought that there was something “mentally wrong” with the man he was “up to something”. He thought Mr Spriggs heard him.
Mr Hull agreed that it was possible that before the plaintiff returned to the truck Mr Spriggs observed to Mr Hull that the man whom they had under observation was wearing a glove or something on his hand. It was apparent to Mr Hull that the plaintiff had noticed only the waving girls outside the chemist shop and that was what he proposed checking out. According to Mr Hull it is likely that neither he nor Mr Spriggs had noticed the girls before the plaintiff mentioned them. Mr Hull heard Mr Spriggs say something about a strange “guy” in the telephone box whilst the plaintiff was in the doorway of the armoured car although he was unable to recall exactly what was said. He thought there were communication difficulties between Mr Spriggs and the plaintiff. He did not hear Mr Spriggs tell the plaintiff to get into the armoured vehicle. Almost immediately the plaintiff had closed the door Mr Spriggs diverted Mr Hull’s attention back to the girls at the chemist and Mr Spriggs told Mr Hull to call “may day”. By this time the plaintiff was a few meters from the telephone box, drawing his pistol and the men were coming out.
Mr Hull agreed that the job of the escort at this position was to check out the bank and the laneway near the bank. If he were escort he said
“If I had no reason to get into that truck I would have definitely gone over and had a look for myself, mmm.
Why do you say that?-- Why? That was our job. Our job is to secure the area before we expose any cash either to or from that truck to or from the bank. That’s our job, to make sure that there is no - nothing that is going to get in the way, doing it safely.” t/s 195
But he agreed that had he been the escort and had he been told by the crew leader to get into the truck he would have done so.
It is the defence case that there was a suspicious situation which had been communicated to the plaintiff and, in conformity with practice set out in the handbook that crew should refrain from attempting to stop or question people involved in such a situation, the plaintiff ought to have carried out both that directive and that of Mr Spriggs and got back in the vehicle. There seems little doubt that what Mr Hull and Mr Spriggs observed of the men in the telephone box would be described as “suspicious”. The plaintiff did not see them. His attention was caught by the waving of the girls across the road. Whilst that conduct was unusual it would not be described as “suspicious”. When the plaintiff started to walk towards the telephone boxes he did not have conveyed to him information which converted the unusual into the suspicious.
Mr Mercer said it was difficult to know where surveying ended and suspicion began. He was asked
“It is really a judgment for the crew member to make in each individual case, isn’t it?-- Very much so.” t/s 225
The particular allegations of negligence pursued at the trial are that the defendant
§ failed to provide the plaintiff with a hand-held radio to communicate with the crew in the armoured car;
§ failed to provide a chase car;
§ acquiesced in a procedure whereby the escort was out of the armoured car when not engaged in delivery;
§ caused deliveries to be made in a routine manner;
§ training and reviews of crew performance were inadequate for hold up and hostage situations.
Before considering whether the allegations of breach are made out and if so were causative of the plaintiff’s damage it is instructive to have regard to the defendant’s own analysis of this event as assessed by Mr Mercer, its State security manager, and what was recommended by him, Nelson v John Lysaght (Australia) Limited
(1974-75) 132 CLR 201.
Mr Mercer’s report was prepared about two weeks after the incident. He wrote of the plaintiff that
“… while brave in the circumstances, was over zealous and should have been the subject of discussion with other road crew before instigation. Such discussion would most likely have necessitated his re-entry to the armoured vehicle and avoidance of potentially life threatening situations.” exhibit 12
In evidence Mr Mercer said that no criticism was levelled at the plaintiff for not getting into the vehicle on that occasion.
It was not until Mr Mercer investigated this incident that he became aware of the departure from “proper procedures” in servicing the ANZ and Commonwealth Banks in Bay Street. The practice which had grown up and which was permitted by people like Mr Hassan, the supervisor and the management at Nerang, meant that only one crew person was on the street. The vehicle exit routines, as Mr Mercer described them for driver and escort, “ensure that 2 employees are on the street; facilitating better observation and demanding more offender resources to achieve a hostage situation”. As Mr Mercer noted, it also meant that since the escort was not in possession of the hand-held radio he would not have been able to signify duress within the bank or, as occurred on this occasion, was not able to be warned of the potential danger by the rear guard.
Mr Mercer was critical that the chase car supervisor and the other Nerang based supervisor were performing rear guard duties on other bank runs due to what he described as “an alleged recruiting problem and a late withdrawal of services of the last available crewman the previous day”. He agreed in evidence that he was not satisfied with the explanation that he had been given about the difficulty of having adequate standby crew.
Mr Mercer recommended, relevantly, that there be a return to normal servicing immediately accompanied by an instruction highlighting the dangers associated with circumvention, as he had described. He recommended that guarding techniques be enhanced by an instruction outlining the need for consideration and caution before confrontation. He further recommended that the chase car supervisor was not to be used for any task other than chase car operations without the express approval of the State security manager and that that approval would not be forthcoming unless an alternative acceptable replacement was provided. He also recommended that recruiting procedures at Nerang be reviewed with a view to identifying the alleged problems associated with recruiting sufficient suitable personnel to avoid the necessity of using supervisors in armoured car vehicle duties other than extreme cases of emergency.
The work carried out by armoured car crewmen necessarily carries dangers inherent in such work. As McPherson JA said of a police officer’s duty in Keeys v State of Queensland [1998] 2 Qd R 36 at 40
“Foresight of the possibility of injury cannot, however, be the sole test; because, if one thing is plain about the nature of a police officer’s duty, it is that the prospect of physical injury is not only forseeable but constantly present. … No doubt the standard of care still remains much the same as in other cases; that is to say, there is a duty to take reasonable care to avoid exposing the officer to unnecessary risks of injury: Ralph v Strutton [1969] Qd R 348, 355. Translated into the present context, however, it would follow that, even when injury is foreseeable, as in the case of police functions it often is, the duty of the Commissioner is, at the very least, to reduce the risk of injury as far as practicable; or, expressing it in the negative, not to do or omit to do anything which would have the effect of materially increasing the risk of such injury.”
In the most immediate way it was the failure of the defendant to insist on the procedure of having two crewmen on the street which led to the attack on the plaintiff. If the proper procedures had been followed Mr Spriggs would likely have been alerted by Mr Hull by radio of the suspicious characters in the telephone boxes and he and the plaintiff would have returned to the armoured car. There they would have observed the men and, no doubt, alerted base.
The defendant submitted that even if that had occurred the plaintiff would, in any event, have got out of the car to assist in guiding the driver to park even had he travelled in the vehicle between the two banks. I have commented above that the handbook does not, to my reading, authorise this but rather indicates that the other crew assist the driver from inside the vehicle to park. This must be so to be consistent with the stated position about the vulnerability of a lone crewman on the street. Such a person outside the armoured car concerned with aiding the driver to park would be vulnerable to attack even more so than otherwise since his attention would be distracted from his guarding duties.
Mr Mercer acknowledged that ideally a chase car would be provided to every armoured car but it was not economically feasible and I accept that evidence. That is not, however, the end of it. The evidence of the plaintiff was that on every armoured car run from Nerang to Kingscliff that he had travelled as a crewman he had seen Mr Hassan. There were four banks in Bay Street and another around the corner. Mr Hassan said that he tried to do this run twice a week. Tuesday was a Reserve Bank day, and although Mr Hassan did not say so expressly, it might be inferred that the armoured car carrying cash to the banks on such a day would be likely to attract the protection of the chase car. Mr Hassan said that he usually parked outside the telephone boxes in Bay Street when he did chase car duty and this was confirmed by other witnesses. He was confident that had he been there on 7 November he would have identified the men as “trouble”. Mr Hassan had significant experience as a policeman in Victoria in the armed robbery unit and both crew and management expressed considerable confidence in his skill.
Had the chase car been there it is likely that either the criminals would have abandoned their plans or Mr Hassan would have warned the crew of the armoured car to abort the delivery or, in some other way, the incident would have been averted.
The defendant managed the business of crew rostering in a way which allowed no or little margin for last minute failure to appear by crew. This meant that the chase car supervisor had to be taken off that duty. Mr Mercer’s investigations did not suggest that there was any impediment to reasonable recruiting and rostering. For the defendant not to have done so exposed the crew of the armoured car to the kind of attack which occurred since they did not have the protection of the chase car.
I was not persuaded that random deliveries/collection times and routing was at all practicable even though that would make planning a robbery much more difficult.
Neither was I persuaded to the requisite standard that the defendant’s overall training was inadequate to prepare the plaintiff to deal with the incident.
I find that it was negligent of the defendant to allow a crewman to be out on the street without being in radio communication with the crew in the armoured car. Had the plaintiff been so equipped (it need not have been actually hand held as the defendant’s submissions presume; it could have been secured at the belt, the top pocket, around the neck or with an ear piece or in some other way) Mr Hull could have alerted the plaintiff as soon as he saw the suspicious man approach the telephone box. This occurred while the plaintiff was still walking towards the Commonwealth Bank from the ANZ Bank. Any warning at any time thereafter until he crossed the lane would have given the plaintiff sufficient time to return to the armoured car.
It was negligent of the defendant to allow the departure from proper procedures to become accepted practice between these two banks. If there were two crew on the street then one would have been in radio contact with the rear guard. But it is even more likely that all three would have made the surveillance from the armoured car as it moved from the ANZ Bank to the Commonwealth Bank and noted and discussed the things seen by Mr Hull and then Mr Spriggs. In that circumstance no one would have left the armoured vehicle before being in contact with base.
The plaintiff suffered his damage because of any one or a combination of the defendant’s negligent acts or omissions. It is not necessary to identify a single cause. Keeys was case where a plaintiff, struck by a bullet in the course of his duties had not had communicated to him a threatening letter in some respects specific to the police officer, received by the Police Commissioner. In the course of his judgment McPherson JA said at p.39-40
“In the field of tort law, it has not so far been the judicial approach, where questions of causation are involved, to arrive at an award for damages of personal injuries in that fashion [as in contract]. Cf., however, Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638, 643, which was, however, an instance of assessing damages rather than determining the issue of causation. In relation to causation, the orthodox attitude continues to be that the plaintiff bears the onus of proving that the defendant either “caused or materially contributed to” the injury complained of by the plaintiff. See March v E. & M.H. Stramare Pty Ltd (1991) 171 CLR 506, 514, citing Duyvelshaff v Cathcard & Ritchie Ltd (1973) 47 ALJR 410, 417.
Using that test in the present case does not, however, make resolution of the problem very much simpler. To my mind, part of the difficulty arises from the way in which it has been sought here to abstract the single issue of causation from its surrounding legal and factual matrix and attempting to deal with it in isolation from other elements of the cause of action, such as duty of care and negligence. In March v Stramare Pty Ltd 91991) 171 CLR 506, 535-536, McHugh J criticised this tendency in the course of approving a proposition of Lord Denning in Roe v Minister of Health [1954] 2 QB 66,85, that the question to be considered is whether the consequence complained of is “fairly to be regarded as within the risk created by the negligence. If so, the negligent person is liable for it: but otherwise not.”
His Honour continued at pp. 40-41
“If, as McHugh J recognised in March v Stramare Pty Ltd (1991) 171 CLR 506, 535, issues of policy tend to enter into the determination of questions of causation, then, in a matter like this, it is enough to say that the decision as to liability for the plaintiff’s injury ought not to be left to rest on too exact or precise an analysis of what the plaintiff might or might not have done had he been given the opportunity, which everyone accepts he ought to have had, to take precautions for his own safety. The interests of those who, at some peril to themselves, act to protect other members of society from harm ought not to be weighed in too fine a balance in the scales of bare hypothesis. The consequences suffered by the plaintiff are, in my opinion, fairly to be regarded as within the risk created by the negligence for which the defendant is responsible.”
To similar effect were the judgments of Davies JA at p 41 and Moynihan J at p 42.
I have concluded that the defendant was negligent and it was more probable than not that the incident would have been avoided one way or another had those breaches not occurred.
The defendant does not submit that the damage by way of psychiatric injury which the plaintiff suffered was not reasonably foreseeable.
Contributory negligence
There was no conduct on the part of the plaintiff which on the facts as I have found them would give rise to any finding of contributory negligence, even if the consequences of Astley v Austrust Ltd (1999) 74 ALJR 403 were to be ignored.
The admissibility of expert evidence
Mr J Douglas QC for the defendant objected to the admission of evidence from Mr Ken King on two bases, namely, that there was no relevant area of expertise as addressed in his report and that if there were such an area of study Mr King did not possess the relative expertise to give evidence about it. Mr King’s professional qualifications are a Bachelor of Mechanical Engineering from the University of Queensland in 1970, a Certificate in Traffic Planning and Control from the University of New South Wales in 1974 and a Bachelor of Science (Honours) majoring in psychology from the University of Queensland in 1980. He is the principal of Ken L King & Associates Pty Ltd, a company which consults in ergonomics and safety. That company appears to be part of the InterSafe Group Pty Ltd which, according to its letterhead engages in “international safety, ergonomics and forensic engineering”.
Through Mr King the Australian/New Zealand Standard on Risk Management, AS/NZS 4360: 1995 (exhibit 45) was tended. Standards Australia is an independent not-for-profit organisation, established in 1922. It operates formally under a Royal Charter as the Standards Association of Australia and has recognition as the peak Standards body in Australia through a memorandum of understanding with the Commonwealth Government. The essence of its operation is to bring together individuals and organisations committed to a common objective - to establish (exhibit 45)
“Australian Standards as national bench marks for products and services so as to enhance quality of life and industry efficiency.”
By a co-operation agreement between Standards Australian and Standards New Zealand the joint standards are prepared by a committee of experts from industry, government, consumers and other sectors, exhibit 45.
Risk management is described in A/SNZS 4360: 1995 as follows
“1.1 SCOPE This Standard provides a generic guide for the establishment and implementation of the risk management process involving the identification, analysis, assessment, treatment and ongoing monitoring of risks.
1.2 APPLICATION Risk management is recognized as an integral part of good management practice. It is an iterative process consisting of steps, which, when undertaken in sequence, enable continual improvement in decision-making.
Risk management is the term applied to a logical and systematic method of identifying, analysing, assessing, treating, monitoring and communicating risks associated with any activity, function or process in a way that will enable organizations to minimize losses and maximize opportunities. Risk management is as much about identifying opportunities as avoiding or mitigating losses.
This Standard may be applied at all stages in the life of an activity, function, project or asset. The maximum benefit is usually obtained by applying the risk management process from the beginning. Often a number of differing studies are carried out at different stages of a project.
NOTE: This Standard may be applied to a very wide range of activities or operations of any public, private or community enterprise, or group. Examples are given in Appendix A.”
Applications included in Appendix A are “(xix) occupational health and safety” and “(xxvi) security”.
Mr King said that tertiary level courses are taught in institutions on the study of safety science and risk management. He was at some pains to explain that, as AS/NZS 4360 sets out, it is a generic term and is indicative of an approach or conceptual framework in which a particular area of interest may be examined. Mr King was of the view that it could appropriately be applied to the collection of cash to and from banks by armoured cars and their personnel. Mr King referred to conferences devoted to risk management and particularly referred to the publications of two United Nations organs, the International Labour Organisation and the World Health Organisation.
Mr King identified a number of risk management studies. He was unable to identify a general theory of risk management which was falsifiable or verifiable even though much had been written in the field. By this process of
cross-examination Mr Douglas was applying the approach to the admissibility of expert evidence articulated by the United States Supreme Court in Daubert v Merrell Dow Pharmaceuticals, Inc (1993) 509 US 579 at pp 592-5. It replaced the “austere standard” of Frye v United States (1923) 293 F 1013 at p 1014 which had made “general acceptance” the exclusive test for admitting expert scientific testimony, p 589. The new guidelines, as they were described, included the “falsifiablity of the theory” and whether the findings had been subject to peer review and publication as well as including general acceptance of the science being offered.
To a large extent Australian courts in the past have tended to approach the admissibility of expert evidence by application of the Frye test of general acceptance. However, as S.J.Odgers and J.T. Richardson observe in an informative article “Keeping Bad Science Out of the Courtroom - Changes in American and Australian Expert Evidence Law” in (1995) 18 UNSW Law Journal 108, in more recent years some Australian courts have favoured an approach which looked at the reliability of the expert evidence proposed to be adduced.
The following exchange with Mr Douglas (erroneously described as Mr Griffin in the transcript) perhaps best summarises Mr King’s evidence
“Forgive me if I over-simplify now, but is this not really a system of approach to a problem involving, if you like, a checklist of things to do when assessing a risky situation?-- Yes, this is the - I suppose not so much a checklist because the factors that you will examine will vary between situations, industries, products and so on. What it is is a process that is structured in that you look at the potential loss, where the loss might occur, and this will, as I said, draw on industry specific information. It may draw on the particular organisation information. You identify the risk, you prioritise them, you then put in place procedures or counter-measures that may control that particular factor or a factor associated with risk or threat, and then implement it, and this can be through training, provision of equipment and so on, and then you order it. So this simply describes an overall approach to defining the risk so that you make decisions based on ----- ” t/s 143
The approach to the admissibility of expert evidence in Australia has long been governed by the observations of Dixon CJ in Clark v Ryan (1960) 103 CLR 486 at 491-2
“The rule of evidence relating to the admissibility of expert testimony as it affects the case cannot be put better than it was by J.W. Smith in the notes to Carter v Boehm, 1 Smith L.C., 7th ed. (1876) p. 577. “On the one hand” that author wrote, “it appears to be admitted that the opinion of witnesses possessing peculiar skill is admissible whenever the subject-matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance, in other words, when it so far partakes of the nature of a science as to require a course of previous habit, or study, in order to the attainment of a knowledge of it.” Then after the citation of authority the author proceeds: “While on the other hand, it does not seem to be contended that the opinions of witnesses can be received when the inquiry is into a subject-matter the nature of which is not such as to require any peculiar habits or study in order to qualify a man to understand it.” Adopted by Harding A.C.J. in Reg v Camm [(1883 1 QLJ 136] …
To this should be added the observation made by Vaughan Williams J. during the argument of Reg v Silverlock [(1894) 2 QB 766], viz. “No one should be allowed to give evidence as an expert unless his profession or course of study gives him more opportunity of judging than other people.” [at p.769]
The editors of Cross on Evidence observe at 29,009 that two principles govern the question of whether the field is one on which evidence can be called. One seeks to exclude evidence on the ground that the ordinary person is as capable of forming a correct view on the question as anyone else. The second seeks to exclude evidence which, since it is not based on an organised body of sound knowledge or experience, is insufficiently reliable. They quote from the decision of King C J in R v Bonython (1984) 38 SASR 45 at 46-7
“(a)whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and
(b)whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court.”
As the editors comment, (a) seeks to control the reception of statements of the obvious or ordinary, while (b) seeks to control the reception of the arcane.
There appears to be no doubt from the bibliographical material which Mr King produced that people have and are studying issues of workplace health and safety - a form of risk management - and on occasions a court may be assisted by expert evidence on such matters. An example might be the forces at work on the human body in heavy lifting so that safe methods may be devised. But there are numerous occasions when the court in its fact finding function does not require such assistance. It is well to heed the warning of King CJ in R v C (1993) 60 SASR 467 at 474
“Courts must exercise great caution in expanding the area of expert evidence. That caution is necessary in order to safeguard the integrity of the trial process and to protect the capacity of courts and juries to discharge their fact-finding functions from being overwhelmed by a mass of expert evidence on topics which could be judged without the assistance of such evidence.”
That seems to me to be the case here and it may be demonstrated by considering Mr King’s proposed evidence contained in his report (exhibit C for identification). Mr King sets out what purports to be the theoretical basis for the conclusions to which he comes. He makes use of the concept of “essential factors”, for example,
“Personal and property damage can be considered as the outcome of a sequence of events comprising essential and contributory factors; each factor could also be the outcome of another sequence. Essential factors are those which must be present for the chain of interactions to continue; contributory factors are not essential but increase the risk of damage by influencing the intensity and direction of the interaction. Controlling any essential factor will interrupt the sequence and avoid the final damage, while removal of a contributory factor will reduce the risk.”
This appears to be the very analysis in which the finder of fact in civil litigation engages. He continues
“The outcome of the factor identification process may only appear to be a series of simple statements. The conceptual framework, however, recognises the multi-factorial nature of damage mechanisms and their control and avoids the very limiting view when operating from an egocentric basis; that is, with a belief (either explicit or implicit) that the victim’s behaviour is central to events and the only point of control.” p 12 exhibit C.
Mr King observed that “Essential Factors Methodology” has been developed and refined over several decades as an objective method to counter observer biases and to maximise the opportunity for identifying relevant and controllable factors in an incident. This, no doubt, is of assistance in modifying the subjective approach to doing a job and will assist management in safe planning procedures. However, it is not a process which a court would be unable to do unless aided in the analysis of the various factors which lead to a plaintiff sustaining damage, particularly the present.
What Mr King has done is to identify the time related factors for the events in sequence and by doing so concludes that weaknesses in the system and opportunities for pre-emptive controls could be better identified and understood. He quotes from a paper on security guards from the International Labour Office in 1998 which stated that transport times and routes as well as loading and unloading locations need to be varied if the risk is to be reduced, a conclusion which it might confidently be said, a finder of fact could reach unassisted.
I concluded that this field of study was not one which the court needed to utilise to reach a conclusion in this case. It is therefore unnecessary to deal with the further question whether Mr King himself is an expert for the purpose of giving such evidence. Suffice it to say that Mr King is well-known for his expertise in the field of accident, particularly motor vehicle accident, analysis and ergonomics.
Quantum of Damages
The plaintiff was born on 29 May 1956 and was 39 years of age at the time of the incident. At the time of the trial he was aged 44. He was born in the United Kingdom but came as a boy to Australia with his mother and step-father. He had married at a young age from which relationship there was one son. The marriage ended it would seem by mutual decision after about ten years. The plaintiff lost contact with his son for many years since he went to the United Kingdom with the plaintiff’s former wife. They resumed contact a few years ago after this incident but the plaintiff’s psychiatric state was such that it was not a particularly happy reunion.
The plaintiff entered into a second relationship in about 1988. His de facto partner had two sons from a previous relationship who lived with them. Mrs Silvia McMillen gave evidence that the plaintiff treated her sons as a loving father and they made up a very happy family unit. At the time of the incident the plaintiff was a fit man who was contented with his work and his family life. He engaged in a number of challenging sports such as abseiling and rock climbing and was something of a fitness enthusiast. He and his wife had a good marriage in which they both worked hard at outside jobs and shared domestic responsibilities.
Immediately following the incident the plaintiff was offered counselling by counsellors retained by the defendant. The plaintiff indicated that he wished to get back to work and put the incident behind him. The day following was the plaintiff’s rostered day off and he returned to work on the Thursday. He attempted to minimise the effect of the armed robbery but was advised how to deal with any feelings of anxiety by the counsellors. In the days following the plaintiff felt that he needed some assistance to help him cope with his distress and irritability at home.
Thereafter the plaintiff steadily deteriorated mentally. Previously, as Mrs McMillen described it, theirs had been “a non-drinking family” but he sought solace in the excessive consumption of alcohol. His conduct at work became erratic and after about three months he ceased employment.
Mrs McMillen described him as a completely changed personality, being irritable, withdrawn, abusive both mentally and, to a lessor extent, physically to her younger son who was still at school and living with them. The plaintiff’s conduct towards the boy with whom previously he had a loving father and son relationship was such that the boy was advised to leave home. Mrs McMillen left with her son. Before she did so she had encountered a number of attempted suicides by the plaintiff. Eighteen months after the incident their relationship came to an end.
The plaintiff was also involved in two bizarre criminal incidents during which time he was drinking heavily and abusing prescription drugs. He stole property of little value and, in effect, set himself up for detection and on one occasion was injured in a violent fracas with arresting police. By then the plaintiff was receiving psychological and psychiatric treatment and, as a consequence of reports from those practitioners, it would appear that the Magistrate recorded no convictions and put the plaintiff on a two year good behaviour bond.
As time passed the plaintiff withdrew more and more and ceased to have any meaningful relationships with other persons retaining only one friend. He has been on regular medication for his symptoms since early 1996. The plaintiff oscillates between feelings of hyperarousal and deep depression. Although initially it was thought that he could be retrained for employment it became apparent that it was highly unlikely that he could be expected to return to long term remunerative employment. His sole attempt at work was a disaster. He was employed as a bus driver but became extremely agitated and anxious on the first day and broke down. Prior to the incident the plaintiff had always been in employment, and always in the field of security save for a three year term with the Royal Australian Army.
From early 1996 the plaintiff has received treatment from Mr Craig Holt a psychologist who reported regularly to the Workers Compensation Board and to various solicitors involved in this matter. The plaintiff was also being treated regularly by his general practitioner Dr Peter Henderson who referred him to Dr Kevin McNamara, a consultant psychiatrist, who has treated the plaintiff from the beginning of 1996. The three professionals, it would appear from their reports, conferred from time to time about the ongoing treatment for the plaintiff.
The plaintiff saw Dr Peter Mulholland and Dr Martin Nothling, both psychiatrists for medico/legal reports. Perhaps somewhat unusually, the specialists are in agreement about the plaintiff’s diagnosis and, to a large extent, his prognosis for the future. They both agree that he suffers from severe and chronic post traumatic stress disorder and from a major depressive illness. Dr Mulholland has applied the AMA tables and assessed the plaintiff’s psychiatric impairment at 50 to 60 percent which indicates a body impairment of approximately 25 to 30 percent.
Dr Mulholland concluded that the plaintiff’s ultimate psychiatric status remained unclear.
“…except that one can say that the more time passes and he does not recover then in the long run the worse the prognosis will be. The same could be said in respect of future employment in that the longer he is out of the workforce and the longer he remains psychiatrically ill then the less likely it is that he will ever get back to paid employment of any type. At the present time he remains significantly psychiatrically ill despite ongoing reasonable treatment and therefore the future prognosis at the present time cannot be anything other than guarded and pessimistic.” exhibit 4, report of 2 October 2000.
Dr Nothing’s only report is dated 2 August 1999 (exhibit 46). He thought that the plaintiff’s health might improve were he to be prescribed higher levels of
anti-depressant medication than those that he was on at the time when he saw him. The plaintiff was under regular psychiatric treatment and various medications had been prescribed for him over the years. Dr McNamara concluded that the plaintiff’s condition had plateaued, had not improved in recent years and was chronic. He reported that new medication was prescribed at the end of 2000 and although effective, the plaintiff remained disabled (exhibit 23).
Dr Nothling concluded
“Given his current symptomatology, it is, in my opinion, strongly probable that he would never return to work in the armed security industry again, but it is possible that in due course he will return to some other form of employment. While litigation is proceeding and he is continually reminded of the traumatic robbery, it is unlikely that he will return to any form of employment.”
There was some suggestion that the plaintiff may be able to obtain employment as a rural worker, perhaps in a wholesale nursery whereby he would not have to face people or be under stress (exhibit 11). In the early years after the incident there were considerable attempts made to retrain the plaintiff in other work but as time passed it became apparent that he would be unable to do so.
The plaintiff may enjoy a few months when his mood is relatively stable but he is subject to panic attacks when under stress. He experiences many months when he is down and is very angry and hostile to others. There is unlikely to be any employer who could either afford or tolerate such an employee.
The plaintiff’s progress was recorded by Mr Holt, his treating psychologist (exhibit 6). I have taken passages from his more recent reports. In July 1998 he noted that
“Chris’s condition remains unstable. He has periods of coping interspersed with periods of severe de-compensation. It is my opinion that Chris will not be able to return to full time work as his condition is severe and chronic and will require ongoing treatment.”
In January 1999 Mr Holt reported
“It appears as though Chris is still having severe episodes of de-compensation. It appears as though he has periods of stability followed by bouts of severe depression and acting out behaviour that is consistent with severe mood changes and Post Traumatic Stress Disorder.
It is likely that Chris will require ongoing psychiatric and psychological therapy for Post Traumatic Stress Disorder. He has a tendency to relapse and de-compensate under periods of stress. Chris’ condition is chronic and at this stage appears to be permanent.”
In July 2000 Mr Holt again noted that the plaintiff’s symptoms were consistent with severe post traumatic stress disorder and depression including episodes of severe debilitation.
Initially Dr McNamara expressed some cautious optimism for the plaintiff’s recovery but noted that he would need ongoing medication and
re-training. In December 1996 Dr McNamara wrote to the Workers Compensation Board that the plaintiff had very significant symptomatology and could never work at his previous occupation and indeed would have difficulty in attempting an alternative occupation (exhibit 7, report of 3 December 1996). Similarly in May 1997 Dr McNamara noted that despite treatment from both the psychiatrist and a psychologist as well as medication he continued to have chronic post traumatic stress disorder as well as secondary depression and “is unable to work in the foreseeable future”.
The defendant concedes that prior to the incident the plaintiff was a man of normal fortitude. It is clear that the plaintiff’s life as he lived it has been effectively destroyed as a consequence of this incident. There is no reasonable prospect that his symptoms will change for the better in the future. Perhaps if new medication becomes available he may do better but this is mere speculation and he should be compensated for the situation in which he presently finds himself. As a consequence of that condition he lives a reclusive life without friends or family and with the expectation of so living for the rest of his life.
I would allow the amount of $80,000 for pain and suffering and loss of the amenities of life for the past and into the future. Interest on half of that amount at two percent per annum for five and half years is $4,400.
The plaintiff’s loss of income to date of trial arithmetically is agreed at $125,484.40. Mr Griffin submitted that there should be no discounting. Mr Douglas submitted that there should be a discount for the prospect that the plaintiff may have lost employment after, for example, a company takeover or
non-compensable illness, of 20 percent. Last year the defendant was taken over by another security company. Some of the witnesses continued in employment with the new owner. Some no doubt were made redundant. The plaintiff was well regarded by his employer and had considerable security experience prior to working for the defendant. He had been in constant employment. He enjoyed his work and there is reason to suppose that as he was in a happy relationship and his wife, who worked in the area and enjoyed her work, they would have remained in that situation indefinitely. Some account should be taken of the possibility that the plaintiff would have been prevented from working by some non-compensable incident but that is a small one. I would allow $120,000 for past economic loss.
The plaintiff received weekly benefits from the Workers Compensation Board and is in receipt of a disability pension. Interest is allowed on $70,000 for five years at five percent per annum.
Past loss of superannuation benefit is calculated at seven percent of past economic loss and is allowed at $8,400.
The plaintiff’s current salary would be $473.70 net per week, with which the defendant agrees (exhibit 50). If he had not been injured he would be able to work in the security industry until age 65 which gives an amount of $315,670 using the 5% tables. The defendant contends that this should be reduced for the usual contingencies together with the prospect of successful medical treatment and returning to work by an amount of 40 percent. Mr Griffin submitted that 15 percent is an appropriate discount figure.
When all the medical opinion is considered together with the length of time during which the plaintiff has been in receipt of competent medical treatment it seems most unlikely that he will engage in remunerative employment in the future of any duration if at all. I therefore accept Mr Griffin’s submission that a discount of 15 percent is appropriate, giving a figure of $268,320.
Future loss of superannuation entitlement is calculated by the application of nine percent to the plaintiff’s future economic loss. That gives a figure of $24,149.
The plaintiff makes a claim for past care. This was provided by Mrs McMillen until she left the plaintiff. For the first three months or so after the incident he went to work and managed. Thereafter as he steadily deteriorated Mrs McMillen calculated that she devoted about four hours a day to his care. Although physically uninjured, he was unable to do anything for himself by way of shopping and domestic activities such as food preparation, clothes washing and gardening. She said if she did not urge him to do so he would not even have taken a shower. Much of this time was no doubt related to things which she did both for herself and her son as well as the plaintiff. Many were tasks for which he had quite often been responsible in the past given her work hours and his.
I found Mrs McMillen a reliable witness and very helpful in portraying the plaintiff before and after the incident but I think there should be some discounting of these figures. The plaintiff claims four hours a day at $11 per hour for 17 months amounting to $24,640. Two hours per day over the whole period is probably adequate to reflect the time that was devoted exclusively to the plaintiff’s needs including arranging medical appointments and taking him to see doctors and so on. At $11 per hour this amounts to $12,320 which is allowed.
Interest on past care at 10 percent per annum for four years is $4,928 which is allowed.
Special damages are agreed in the amount of $25,808.89.
Interest is allowed on the plaintiff’s out of pocket expenses which are agreed at $6,676 for pharmaceutical and travelling expenses at five percent for five and a half years and amount to $1,835.
Future medical expenses and medication are allowed at $5,000.
The Fox v Wood component is $4,250.65.
The plaintiff was paid $30,000 under the New South Wales Victims Support and Rehabilitation Act of 1996. Mr Douglas concedes that it is a sum that need not be brought into account although initially his written submissions indicated that it ought to be deducted from any judgment given. In view of that concession I do not propose to consider the legislative basis of the payment and New South Wales authorities handed up by Mr Douglas.
In summary the plaintiff’s damages are as follows:
Description Amount
$
Pain and Suffering and loss of the amenities of life for past and future 80,000.00 Interest on $40,000 at 2% per annum for 5 ½ years 4,400.00 Past economic loss 120,000.00 Interest on $70,000 for five years at 5% 17,500.00 Past loss of superannuation 8,400.00 Loss of future earning capacity 268,320.00 Future loss of superannuation 24,149.00 Past gratuitous care 12,320.00 Interest at 10% on $12,320 for 4 years 4,928.00 Special damages 25,808.89 Interest on $6,676 at 5% for 5 ½ years 1,835.00 Future medical and pharmaceutical needs 5,000.00 Fox v Wood 4,250.65 $576,911.54
The refund to WorkCover Queensland is $38,736.62 for weekly benefits and medical expenses and must be deducted from the total leaving a balance of $538,174.92.
There will be judgment for the plaintiff against the defendant in the sum of $538,174.92.
When judgment was to be delivered on 8 June 2001 I was asked by junior counsel for the defendant to delay doing so because his instructing solicitor whose firm took instructions from the New South Wales Workers’ Compensation Board had just advised that certain heads of damage may be excluded by virtue of the relevant New South Wales legislation.
The defence was not in a position to formulate its submissions immediately and the plaintiff’s representative knew nothing about the matter.
I published my reasons and proposed calculations and orders about the quantum of the plaintiff’s damages to the parties legal advisers and gave directions about further submissions on the issue raised by the defendant.
I have received no submissions from the defendant although the plaintiff’s counsel have since I have received their submissions in reply.
On 20 July 2001 I was informed in writing that the parties had resolved the outstanding issues.
As part of the agreement the plaintiff has agreed that the awards in respect of interest on past pain and suffering, $4,400, and past gratuitous care, $4,928, be deleted from the amount of the judgment.
As part of the agreement the parties are also agreed that the workers compensation refund should be incorporated into the judgment amount. The parties tendered a draft order in the form satisfactory to them, which both counsel have initialled. Accordingly the orders are in accordance with the agreement between the parties.
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